Misjudging the Judges – RCANZ Revisited

I have complained about consumerism extensively in my book and blog. Jews who do not care to know much about Judaism or Halacha will not know much about it no matter how “frum" they are.

I have stated ad infinitum that the objective of One Above and Seven Below (1A7B) and of my blog (אלו"ל) is to fight Jewish consumerism. It is meant to help Jews who were not adequately educated learn how to think and act so that they can attain the status of Im Bechukosai Telechu (the One Above camp) and earn all of the benefits written there. In a nutshell, it is meant to help Jews understand Judaism – Yiddishkeit - and to succeed in life.

I consider this a [free] public service.

Most consumers, being consumers, do not readily grasp the profundity of HKBH’s promise and pass up this public service. What’s more, many folks feel threatened by it and aggressively oppose it. This much is to be expected by consumers.

But the Rabbinate is different. Their job is to know the Halachic truths even when the consumers don’t. They are supposed to teach and lead the masses, not be taught by them. Thus, it is astonishing and horrifying to see people who call themselves Rabbis, who are banded together in a Rabbinical Council that covers a complete continent (and beyond), and who are expected to be “professional” Jews and the leaders of the community, fall into the abyss of the Seven Below.

It goes without saying that I am very distressed by the behavior of the RCANZ (Rabbinical Council of Australia and New Zealand). The details of my grievance toward them can be found in this earlier post.

To briefly summarize, over the course of several posts I laid out the Halachic guidelines about how we are to deal with suspected miscreants. These guidelines go against the sensibilities of secular minded people which is what makes them so unpopular. Many of our Halachos do this – in the laws of Shabbos, Kashrus, Niddah, Ribbis, and even in Choshen Mishpat - which is what makes true Torah observance so unpopular. The job of the Rabbinate is to stand by Halacha, to enforce it, and to demonstrate to the masses how and why these Halachic guidelines are really in their best interest.

But, instead of taking that route, the RCANZ followed the herd and attacked the Halachic foundations. They wrote:

… following information being disseminated in the community which asserts Mrs Leifer should not be extradited for Halachic reasons, we wish to state in the clearest possible terms that such assertions are fundamentally flawed… We call on those who are disseminating this information to cease immediately and to no longer misuse Halacha to justify their misguided beliefs.

Of course, I was distressed.

As a blogger, I can’t complain about being criticized – it’s an occupational hazard; but if the critic cannot back up his criticism and cannot provide valid grounds, it amounts to slander, and who likes to be slandered? But what really distresses me is when the slander undermines the objective of Im Bechukosai Teilechu (1A7B) and stands in the way of helping people understand Yiddishkeit and become more successful. And, even more so, when it encourages people to be vindictive and destructive to themselves and others. And it is most astonishing and horrifying when it comes from a council of people who call themselves Rabbis! (Incidentally, the Rabbinical Council of Victoria also shamelessly carried this statement, so I need to include them in RCANZ’s camp.)

I couldn’t let this slander slide, and, conversely, I am quite willing to reconsider my position if the Halachic grounds are indeed fundamentally flawed, and so, I petitioned the Executive Committee of the RCANZ to validate their statement – “put up” or “take down”.

You can see my petition in this post and their response in this post. They neither validated their charges nor retracted them - the former because they couldn’t and the latter because they wouldn’t.

I was appalled, not particularly by the personal affront (which I cannot deny was in place), but more so to see a Rabbinical Council callously misleading the very population that they are meant to guide.

I went so far as to look into the possibility of calling a din Torah for motzi shem rah in order to force their hand but this turned out to be a blind alley. The main reason is that there is a rule in Choshen Mishpat that in today’s age we only call dinei Torah for a grievance that caused a tangible and measurable financial loss (חסרון כיס) and one that is common (מצוי). In our case, although they are doing tremendous damage to the well-being of the consumerist population (לפני עור), I personally did not sustain any real damage, financial or otherwise. 

In addition, although it is relatively easy to establish that my blog was the target of their attack, they did not identify it by name. And thirdly, by rule, a defendant has the choice of choosing the venue of the proceedings. Presumably, they would insist on a din Torah in Australia and the idea of me going to Australia is rather prohibitive aside from being distasteful. Thus, our feud has reached a stalemate.

Initially, I naively took for granted that the RCANZ is a legitimate Rabbinical Council dedicated to upholding Halachic standards. I assumed that they had some professional integrity and could stand behind their charges and, if they cannot validate them, they would have the decency to retract them (with or without an apology).

What was I thinking?

This assumption was based on perusing their web site and seeing it proudly display a picture of a large group of devout looking Jews many of whom sporting black hats and shaggy beards. In addition, I noted that one of their founding members used to be a very close friend of mine in Lakewood Yeshiva (and in our previous one) and I know him to be a pristine card-carrying member of the One Above camp. I was hopeful that the entire RCANZ represented that camp.

I suppose I misjudged the judges.

This sorry episode has proven to me that the RCANZ is a group of “today’s” rabbis; those of an extremely liberal mindset who believe that liberal “values” and perceived social justice need to supersede basic Halacha. They cater to the consumers who fit Halacha into their own agenda.

I was very perturbed about this, especially since I am so used to being dan people l’kaf zechus. So I decided to check a bit deeper to see if I can find out who these people really are. I revisited their web site and noticed that they have one page which displays a list of their founding members and a second, more current, page that displays a list of members on the Executive committee. Only two names were on both lists. Gone was the name of my old Yeshiva friend. Has he abandoned ship? (I hope so!)

Has the ship been blown off course? (I'm afraid so.)

So, let’s deal with this current list and see who we meet.

Apparently, the president of the RCANZ is Harav Yaakov Glasman. By all appearances, Rav Glasman seems to be a very devout and erudite individual. According to his shul biography, his claim to fame is Interfaith Dialog. This is something that is not held in great esteem here in the Holy Land - אני ה' א-לקיכם אשר הבדלתי אתכם מן העמים, but perhaps in Australia there is a need for it. In any case, as the president of the RCANZ, I have to hold him chiefly responsible for this debacle.

The fellow that I was directed to in my correspondence with the RANCZ is Rabbi Dr. Benjamin Elton. Again, another devout and erudite individual. He is a star alumnus of YCT, the left-wing Riverdale yeshiva that has brought us Open Orthodoxy. I have listened to at least a portion of his famous talk about Open Orthodoxy in Sept. of 2014. He definitely has a firm grasp on Halacha and [British] Jewish history. In the last minute of his talk, he finally addressed the title question: “Is Open Orthodoxy Orthodox?” There was only one problem. In all the previous 45 minutes he did not define “Orthodox” by which to measure his opinion. I defined it HERE.

From my correspondence I can only conclude that, as is the style of Open Orthodoxy, Rabbi Elton feels free to choose which Halachos of Shulchan Aruch to observe and which to ignore.

Next on the list is Rabbi James Kennard. Rabbi Kennard is the principal at Mount Scopus Memorial College (sounds more like the name for a cemetery) “a Co-educational Jewish Day School, with over 1,500 students from Kindergarten to Year 12, located in Melbourne, Australia.”

I first met Rabbi Kennard on June 8, 2017 when he took the time to enter a comment onto my Kangaroo Court post and handily put me in my place. Here is an excerpt of his comment:

He [Mr. Hirshman] might also be unaware of the unimaginable scale of the hillul hashem that this denial of justice, and the fact that there are actually "frum" people who support such a denial, is causing.

Rabbi Kennard is displaying the Modern Orthodox (consumerist) mindset that I referred to in my book (pp. 35-6). I wrote there about a friend named “Morton” who claimed that a specific position of the chareidi world is a Chillul Hashem. I wrote:

Does [Morton's claim] truly constitute a chillul Hashem? Let’s check it out. What exactly is a chillul Hashem? To answer that, we consult our sources. The Talmud in Tractate Yuma (86a) defines chillul Hashem. This definition is quoted in Maimonides (Yesodei Torah 5:10,11). Does our situation typify this definition? I don’t see how. We chareidim have, over the years , held the monopoly of erudite scholars fully versed in Talmud, Shulchan Aruch, and Maimonides, some of whom can quote full volumes by heart. Amazingly, none of these scholars have ever ruled that pursuing [Halacha] is a chillul Hashem…Yet, Morton can rule that it is, indeed, a chillul Hashem. Does he know something that they don’t? Au contraire, Morton is a consumer. Recall hazard #2 - a consumer has trouble discerning an authentic religious phenomenon from a look-alike. Morton thinks it is a chillul Hashem because it resembles a chillul Hashem …And why does Morton think it is a chillul Hashem? Recall hazard #3 - the consumer shapes opinions from non-Judaic (read: secular) sources. Morton perceives a social injustice. Based on conventional thought (what is now called politically correct), a social injustice is immoral. Ergo, anything immoral perpetrated by a religious person constitutes a chillul Hashem. I intend to demonstrate that this is not the opinion of the sages of yore.

This excerpt, which was shortened, may not be fully clear. What it says is that a Chillul Hashem is defined (Rambam Yesodei Torah 5:10,11) as a wanton violation of Halacha. It is not defined as a violation of a misguided and anti-Halachic sense of justice.

Bottom line is that here we see Rabbi James Kennard, an esteemed Rabbi and educator and a member of the Executive Committee of the Rabbinical Council of Australia and New Zealand referring to my call to abide by Halacha as a “hillul hashem” (no capitals). How can a great Orthodox Rabbi justify doing so?

Simple. Just deny that my position is Halachic (which is its own chillul Hashem). And so, on his Facebook page of that date Rabbi Kennard writes:

It's astonishing and horrifying that a blog post is doing the rounds that defends Malka Leifer, (the former Principal of a Melbourne school), attacks her victims, and objects strongly to her being extradited to stand trial in Australia, supposedly on "halachic" grounds.

Hey, where have we seen this before? 

In preparation of this post, I sent Rabbi Kennard a personal email where I wrote:

These [underlined] words indicate that you personally, along with the RCANZ, do not acknowledge the Halachic grounds that are in effect and deny that they are “Halachic”.

...I must inform you that I am considering dedicating one more blog post to discussing the misplaced priorities and the lack of Halachic integrity displayed by the RCANZ. In the interests of journalistic ethics and fairness, I am first asking you to formally assert how and why you justify these grounds to be non-Halachic so that I can assess the validity your position before I discuss it on my forum.

So I am officially asking him to validate his statement. I also asked him in a PS why he prefers to go by the name James.

No response to the email.

It is noteworthy that in the section about Religion and Identity on the web site for his illustrious school it lists:

The centrality of Israel for the Jewish people is conveyed and celebrated.

I gather this means that they celebrate Yom Haatzmaut with Hallel and hoda'ah but when I point out some unique Halachos in Shulchan Aruch concerning the Kedusha of Eretz Yisroel (such as YD 267:85), Rabbi James turns the other cheek.

One interesting vignette to Rabbi Kennard is that he is a signatory on the renowned Statement of Principles regarding Jews with homosexual orientation. I discussed the issues with this declaration in this post. In this capacity, he is in company with the last member of the Executive Committee that I wish to introduce – Rabbi Alon Meltzer.

Rabbi Meltzer is one of only two names that appeared both on the original RCANZ list and on the current one. He is the Rabbi of the ACT Community in Canberra, NSW. This community seems to have both an “Orthodox” congregation and a “Progressive” congregation. It seems that Rabbi Meltzer has been very vocal about our issue in recent weeks. The ACT Jewish Community puts out a periodical called HaMerkaz. In issue 538 (June/July 2017 – seems to be the most recent), we have a message from the “Rabbi’s Desk” (page 5). Two successive paragraphs caught my attention. He prefaces these that “There are three main issues that are facing our community at a national level.” And then he writes (paragraph 1):

The first still revolves around Child Sexual Abuse, specifically relating to the alleged abuses perpetrated by Malka Leifer, a former principal of the Adas School in Melbourne. Recently RCANZ and the ECAJ launched a fresh campaign to lobby the Australian Government to ensure that she is extradited from the State of Israel. With the memories and scars still very fresh from the Royal Commission into Child Sexual Abuse, it is imperative that we as a national community stand with a strong and united voice demanding justice for all the victims of such horrendous tragedies.

This issue will never leave the spotlight. Aside from all that I have written about Halachic restrictions, something is very troubling to me. The issue of Child Sexual Abuse is a serious issue that must be dealt with. But the priorities need to be prevention, protecting the vulnerable, and healing those who were harmed. Nailing the perpetrator nine years after they left town ought to be last on the list. Remember what I wrote (HERE) about closing the barn door after the horse is gone. As I have written, nobody will be helped by this extradition even if it takes place.

This paragraph tells me that the RCANZ and ECAJ are not doing anything of substance to really deal with the issue. It looks to me that they are riding on the hype, launching fresh campaigns, and lobbying the Australian Government (i.e., the goyim) in order to score some kind of Pyrrhic victory and to look like heroes. If they really want to deal with CSA there are quite a few other things they ought to be doing and it doesn’t seem like they are doing them.

What I found so amazing about this statement was its juxtaposition with the next paragraph. He writes (paragraph 2):

The second issue is the inclusion of the LGBTQI community within the fabric of Australian Jewry. At the recent Limmud Programs and private communal functions, Rabbi Steven Greenberg, an Orthodox Ordained Rabbi, who later opened up about being Gay, spoke on the issues of inclusion of all Jews within practice and worship. While some of his views are clearly controversial, the response to his talks by some members of the Jewish community were far too extreme for what is needed in 2017’s discourse. As many of you know, it is my view that Orthodoxy in particular, and Judaism in general, needs to ensure that we shift the discourse from the sexualisation of this community, to a conversation around companionship, relationships, and the space for inclusion within the community.

A first glance there is nothing too surprising about this as we know that Rabbi Meltzer along with Rabbi Kennard are co-signatories on the Statement of Principles. But when we take this for all it’s worth, with this paragraph Rabbi Meltzer is outdoing himself in the tolerance department. 

You see, the Statement of Principles is a relatively toned down document that refers to these folks as our brothers and sisters “with a homosexual orientation or same-sex attraction (SSA)”. In paragraph 7 it posits that “Jews struggling to live their lives in accordance with halakhic values need and deserve our support.”

All this is valid if we are dealing with straightforward devout people who are afflicted with SSA or homosexual orientation and are “struggling to live their lives in accordance with halakhic values”; people who can claim that HKBH just wired them differently and who keep their struggles to themselves. But this is for those who go no further than the LG (Life’s Good!) level of the code. They still know what kind of chicken to use for Kaparos.

Rabbi Meltzer, however, is inviting the entire alphabet. Not just L's and G's but B's (Bi-s), T's (Trannies), Q's (pink pants, chartreuse shirts, shaved payos and pierced eyebrows), and I's (tumtum and androgynus). People who live their lives כמעשה ארץ כנען וכמעשה ארץ מצרים. People who aren’t struggling to live their lives in accordance with halakhic values (maybe the I's are sincere - they really were born that way). Rabbi Meltzer - and his colleagues - want us to accept them into our shuls, but we have no idea where they are supposed to sit (especially the I's).

So here, in these two successive paragraphs, we see two “main issues” facing us at a national level. The first is the battle against sexual deviancy and the second is how we must be tolerant and inclusive of sexual deviancy.

Now, of course, if anybody is still reading this far they will gasp in horror and scream: how dare you equate consensual sexual permissiveness to predatorial sexual abuse of “children”?  

On a side note I will first respond that anybody who thinks that the activities of these permissive LGBTQ(I) folks are all consensual and in good fun is more naïve than I am. I have no doubt that quite often these folks search out and recruit playmates who are not as eager as they are. But when two (or more) teenage faigelach or even two or more adult faigelach are fooling around and things get out of control, who are they going to complain to?

But my key response is exactly what I wrote more than 18 months ago in my post about Desperate Measures:

People mistakenly look at this (CSA) as a man-made plague. And pretend it can be easily handled if we only mahsser all of the offenders to the police and “put them in jail for life”.

Many of us cannot admit that this is a sickness sent by G-d just like cancer. HKBH wants this malady to be here in this generation. For the same reason that He wants cancer to be here. He wants us to “discover” that sexual misconduct is a direct consequence of the Eitz Hadaas (see Ramban Breishis 2:9) and to do what we need to do to fix it. As long as we do not achieve the “tikkun olam” for the sin of Adam HaRishon we will continue to suffer from it (Rambam Issurei Biah 22:19).

Where sexual deviancy is tolerated and "included", molestation is sure to follow. Thus, in my view, anyone who puts these two paragraphs one after the other is talking out of both sides of his keyboard.

So we have met the key players of the Executive Committee of the Rabbinical Council of Australia and New Zealand (RCANZ). They call themselves Rabbis but they are consumers. I cannot communicate with them because they cannot use genuine Halachic language. As such, I have no recourse but to write off this grievance.

Im Bechukosai Teileichu is the contract for yarei shamayim. True yarei shamayim are those who promote adherence to Shulchan Aruch, not those that disparage it. They are those who shun and avoid chillul Hasham, not those who facilitate it.

Sadly, our heroes at the RCANZ do not meet this definition.

Hetter L’Issur - When a Jew Falls onto Hard Time

I’ll start this one with a joke (a cartoon I once saw):

One prison inmate remarks to his cellmate, “I got tired of doing the same nine to five. Now I’m doing six to twelve.”

End of jokes.

The concept of prison as a punishment doesn’t seem to faze anybody in our era. Hey, we all play Monopoly. You break the law – you go to jail. And, if you go to jail, you must have broken the law (unless you just happened to pick the wrong Chance card).

It’s as American as apple pie!

It’s not just American. In today’s age, imprisonment as a judicial penalty is a part of every culture that exists. And it goes back a long way. We know there was prison in ancient Egypt – Yosef went there. And there was prison in ancient Bavel – Tzidkia and Yechanya went there.

But we Jews are a bit different than everyone else. We have our own rules. What kind of rules do we have for prison?

The short answer is: none at all. It is not a part of our culture.

However, upon closer examination, we do see some forms of incarceration. There are two well-known examples.

Firstly, the gemara in Sanhedrin 78a/b tells us that we indeed carry out “police custody” and judicial detention pending outcome of a trial or while we see if the stricken victim recovers or succumbs. This is taken from the basic case of assault and battery (Shmos 21:19) as well as the cases of the mekoshesh (Bamidbar 15:34), the mekalel (Vayikra 24:12). In addition, the gemara in Sanhedrin (112a), regarding a deviant city, suggests that each inhabitant is judged and then held in detention until it is determined if there are enough guilty inhabitants to designate the entire city as a deviant city and to apply the special laws.

So we know that our culture supports incarceration for short-term detention.

Secondly, we have the Arei Miklat – cities of refuge. This applies to one who is guilty of what can best be termed reckless homicide. This is a gray area between premeditated murder (death penalty) and totally involuntary manslaughter (no penalty). In a case like this, the perp is not guilty enough to get the chair but not innocent enough to walk. The Torah is very forgiving if a close relative of the victim wants to take him out; but since the perp doesn’t really deserve this, the Torah provides for him a sanctuary where he is off limits to the avenging “angel”.

In this special city, the perp lives a normal life in a real house with his wife and kids, goes to shul and work or kollel (locally) and does not live any sort of prison life. He can go to sleep and wake up whenever he wants. He can go out to parks and restaurants, to the local zoo, and can take out full membership in the JCC. He is merely confined to the borders of that city until the acting Kohein Gadol passes on.

On the one hand, the gemara in Makkos looks at this as a punishment and atonement for his act – a chiyuv galus- but, on the other hand, its name – ir miklat – does not indicate a place of punishment but rather a place that is aimed at protecting him. Thus, it is very hard to call this a “prison”.

In any case, this is something that is unique to our culture although it may have been emulated in autonomous penal colonies that were popular in the French and British colonial era.

But let’s now talk about the real McCoy – Alcatraz, Sing Sing, Shawshank, Ohio State, Penn State (did I mean State Pen?), Phnom Penh, Leavenworth or, most dreaded of all…Maasiyahu. The places where people do “hard time”. Do we Jews have a Halachic concept of doing “hard time”?

Before I go on, let’s try to understand what a prison is and what its purpose in today’s world is. Like everything else, the concept of prison has pros and cons. (Most prisons are full of cons although some of the cons are real pros. And, of course, there are also ex-cons like Ehud Olmert and ex-pros like O. J. Simpson.)

Here are some of the pros:

1.   It keeps dangerous people off of the streets thus making the world a much safer place.

2.   It gives these people lots of time to reflect on their misdeeds and to improve themselves. This is why these wonderful places are called “Penitentiaries” – for here they do penance – and “Correctional Facilities” – for here they are corrected and straightened out – or the Ohio State Reformatory.

3.   It provides dysfunctional people with a home where they can get food, shelter, clothing, and medical benefits at no cost (to themselves) and even play basketball for an hour a day.

4.   It protects people who come from bad neighborhoods from gunfire and only leaves them exposed to makeshift knifes and shoelaces.

5.   It deters other potential criminals from carrying out nefarious deeds, thus reducing crime rates.

6.   It administers justice for the benefit of victims of crimes.

7.   In days of yore, it generated cheap forced labor.

8.   It provides numerous jobs to prison wardens, guards and attendants, perpetual income to defense attorneys on retainer, and overwhelming profits to the private companies that win lucrative state contracts to run the joints.

All told, it is great for society and the economy. Everyone wins…almost.

How about some of the cons:

1.   People cannot live the lives of normal human beings in there (family life) and are forced to do unnatural things and to become “non-human” (if they aren’t already).

2.   It confines them to the company of people who are just as, or even more, dangerous and degenerate than they are. Not much to expect in the way of positive influences.

3.   It adversely affects people’s emotional, psychological and physical health.

4.   It brands inmates officially as “criminals” (jailbirds) which stays with them and gives them no incentives to improve themselves.

5.   It prevents able bodied people from being economically productive for a central portion of their lives. In line with this, it forces the prime portions of peoples’ lives to go to waste which, in turn causes them to waste the rest of their lives.

6.   In line with the previous, if they have dependents, the dependents lose their support base and resort to the resources of the government or community or charities or other relatives for support, thus depleting these resources. In some cases, the dependents resort to criminal means themselves.

7.   X (player to be named later)

A quick look at the Pros list and we notice that only nos. 2-4 benefit the people on the inside. The rest benefit those on the outside. Now, check the Cons list. Nos. 1-3 and 5 affect those on the inside; nos. 6 and 7  affect those on the outside. #4 is detrimental to both sides.

So if you are a criminal or planning to be one, and you want to do a cost/benefit analysis you must compare Pros 2-4 vs. Cons 1-4. As far as I can calculate, if one is a pereh adam from a bad neighborhood, a drug dealer, pimp, M-13er or such, Pros 2-4 vastly outweigh Cons 1-4 and doesn’t make prison look like too bad a deal. So he has no overwhelming urge to try to stay out which bumps out Pro #5 for the rest of us. If he currently is a human being and wants to stay one, he may think twice.

But for those of us on the outside, we need to compare Pros 1 and 5-8 vs. Cons 4, 6, and 7 and make a cost/benefit analysis. Does it really make our world a safer place? Does it really benefit the victims? It seems we are not getting forced labor or chain-gangs any more. And what about Con #7?

It would sure help if we reveal the identity of Con #7. So here it is:

·         It costs an outrageous amount of money!

And the looming question is: who is really paying for all this?

And the looming answer is: You are. And I am. And all the "good guys" in society, including all of those who were victimized by these crimes.

Chicago, Illinois currently has the highest municipal sales tax rate in the US. And do you know where a good chunk of that money goes? Just have a quick peek into Cook County Jail and see your tax dollars at work!

Incidentally, when all those prosecutors work overtime on cases with very weak evidence to clinch a conviction for someone who may not be the right criminal so he can sit in prison at our expense (while the real one stays free and does business as usual), who do you think is paying them to do that?

What comes out is that we – the “good guys” – are (Con #7) footing the bill and (Con #6) sustaining collateral social and economic damage and what are we getting in exchange?

Does it make the streets safer? Are crime-ridden areas any less crime ridden? For all the money we pay, are we now able to walk in Bedford-Stuyvesant? South Bronx? South Chicago? Crown Heights???? And if you live in a low crime area, is the penal system to thank for that?

Does it deter crime?

We take for granted that most people in prison want to get out. This is not always the case. Some folks get very comfortable and cozy there. They’ve got food, clothing, and shelter… on your dime. No worries, mate.  And, believe it or not, there are numerous people on the outside who want to get in. For the same reasons. So they are not really deterred from committing crimes. They may be actually more committed to committing crimes.

Do the other “Pros” benefit us?? Check the list and judge for yourself.

My cost/benefit analysis tells me that prisons are not a good deal. If it was possible, I would move to dispense with them altogether. But there are people who need to be taken off the streets and even a minimal deterrence is better than no deterrence. So we do need them for people who absolutely must be isolated from society.

But to use it as a punitive institution for white collar criminals, petty delinquents, and to serve justice for people who are long retired from criminal activity just doesn’t add up. Hey, I am all for justice, but I am having enough trouble paying for my electric and water. I just can’t afford to pay even more for “justice” that takes and doesn’t give. And, I am a bit resentful at those who demand it on my cheshbon!

The upshot of all this is that incarceration may be a necessary evil but it hurts more than it helps. And, as all “necessary evils”, it should only be employed as a last resort, not the avenue of choice.

So after all this, we see four purposes for modern day imprisonment:

·         To isolate a harmful person from society

·         To try to “straighten him out”

·         To punish somebody for being a “bad boy”

·         To deter others from committing crimes

We can now return to our original discussion. Is there a Halachic concept of prison in our judicial system?

Depends who you ask.

As I wrote, aside from pre-trial detention and Ir Miklat, there really isn’t. The Torah has more faith in the humanistic character of a Jew and presents faster and more effective methods of getting our people to toe the line. In all of our Halachic literature, you will not find such a concept anywhere except…

…in the Rambam. Two places.

In Hilchos Rotzeach 2:5 the Rambam is discussing a confirmed wanton murderer who does not meet the requirements for judicial execution. He writes:

If the king chose not to execute…Beis Din is nevertheless obligated to beat them severely and to incarcerate them under harsh conditions for many years…in order to frighten (i.e., deter) other evildoers…

So here we see a unique Halacha that applies exclusively to murderers who deserve the death penalty but don’t meet all the Halachic requirements for implementation. Perhaps Rambam will apply this Halacha to capital cases of giluy arayos as well (masculine r^pe of a married woman or another man) since the Torah likens this to murder. Still, from this Halacha, all we know is long term incarceration can be used as a substitute for the death penalty where a death penalty is called for.

The second mention is in Sanhedrin 24:9. Here, the Rambam expounds on the rule that Beis Din is empowered to take extrajudicial steps in unusual circumstances when there is a general communitywide breech of proper behavior. He writes:

And likewise the court may shackle one’s hands and feet and incarcerate him in prison and drag him…

In this Halacha we are evidently not limited to a case of capital offense but it is limited to exceptional circumstances when there is a special need. From the source gemara of this Halacha (Moed Kattan 16a) and the way this is presented in the Tur (the only codifier who quotes this Rambam in his work; the Shulchan Aruch conspicuously refrains from doing so) it seems that this procedure was intended specifically to enforce compliance from one who defies the rule of Beis Din and is meant to be enforced only until the miscreant relents and complies.

Interestingly, the source gemara in Moed Kattan only uses the term כפתינן ואסרינן which means to “shackle” and "restrain”. The gemara does not mention that it means to restrain in prison. The Rambam is interpreting this on his own. The Tur concurs but Rashi argues. Rashi in Moed Kattan refuses to define the term “restrain” to mean to imprison. He says it means to tie one to a whipping post to be flogged. Likewise nowhere does Rashi mention anything about incarcerating a murderer for “many years” or at all. This is likewise a chiddush of the Rambam.

Thus, according to Rashi, we have no Halachic grounds for punitive incarceration whatsoever. Perhaps Rashi made a similar cost/benefit analysis.

So, is prison good for the Jews or bad for the Jews? Is it okay for a Jew to fall upon Hard Time?

To sum up, only the Rambam advocates long term prison limited to confirmed but not implementable capital offenses. Both Rambam and Tur seem to advocate some form of prison as an extrajudicial measure but we do not know if it is meant for anything other than a short-term measure to "correct" audacious defiance and to enforce the authority of Beis Din (as opposed to a long-term punishment). Moreover, I think we can safely assume that these extra-judicial measures are only to be employed after the more standard measures - Makkos d'Rabanan - have been undertaken and have not gotten the desired results.

From Rashi, it appears there is no such thing as incarceration under any circumstances.

The non-Jewish secular society is each-man-for-himself. All law-abiding citizens see themselves as the elite “us” and see the criminals, thugs, social misfits and miscreants as the underworld “them”. They erect a glass wall and disassociate themselves from the criminal class and let the authorities deal with them. They don’t really give a d**n what happens to them and there is no reason for them to. They are “other folks”. They casually pay their state and city taxes and assume it is being put to good use. If there is any trouble, the first thing they do is call the cops.

We Jews tend to mimic this relationship with regard to the non-Jews and it tends to carry over into cases involving fellow Jews. But, in truth, we have no authority to maintain this glass partition when it comes to our fellow Jews. Our miscreants are part of us, not a separate nation. Like it or not, they are "family". And we are responsible for their well-being.

כל ישראל ערבים זה לזה

One thing we know for sure is that a prison is not a healthy place for a human being. For one who doesn’t qualify as a “human being” it doesn’t much matter. But for one who does, and primarily for one who is Jewish, and more so, one who officially observes Torah and Mitzvos, it is deadly. Firstly, it is a very dangerous place where one is exposed to violent and promiscuous people with no adequate means of defense. Secondly, it takes a tremendous toll on one’s self esteem and emotional and psychological well-being. Suicide, R"L, is not uncommon. Thirdly, and as a consequence of the previous, one is vulnerable to depression and the associated lowering of immune defenses and to contracting all kinds of deadly illnesses. So, for just about anybody, prison literally shortens one’s life.

And for an observant Jew in a non-Jewish prison, there is no real chance of being able to keep Torah and mitzvohs, proper Kashrus, Shabbos observance, Yom Tov, tefillin, and even saying brachos causes problems. No way to maintain a family life, tznius or family purity (if somehow applicable). And of course, there are countless other spiritual challenges to boot.

All told, prison is no place for a Jew. Not for any kind of Jew. Even the Rambam who advocates incarceration for an inexecutable murderer is talking about a prison under the jurisdiction of a Jewish Beis Din. He may not be overly concerned about the physical or emotional health of this miscreant who should anyway be put to death; but, clearly, he cannot condone subjecting any Jew to committing more transgressions than he has already committed. Hey, even if Beis Din is going to feed him barley until his stomach bursts (Sanhedrin 81a), they still have to make sure that the barley isn't tevel or chodosh!

Sof davar, barring a situation of pikuach nefesh to other Jews, there is no justification for allowing, and certainly for facilitating, the incarceration of a Jew into a non-Jewish prison. Prison life literally physically shortens the life of an inmate and prevents them from living as a Jew.

Anybody who causes a Jew to spend time in a non-Jewish prison (again, where there is no pikuach nefesh to anybody else) will have to answer for every lost minute of life, every lost mitzvah, and every forced transgression. Rationalizations such as punishment for past crimes or the quest for “justice for the victims” and "closure" will not do the trick.

It is not “Jewish” justice.

ברוך אתה ה' ... מתיר אסורים!